Donevan v. University of Windsor, 2010 HRTO 408

Human Rights Tribunal of Ontario

B E T W E E N:

Donevan

Applicant

-and-

University of Windsor, William Gallant, Brent Angel, Clayton Smith and Ross Paul

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 23, 2010

Citation: 2010 HRTO 408

Indexed as: Donevan v. University of Windsor

1This Application was filed May 22, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for Order during Proceedings seeking to remove parties as respondents to this proceeding and other case management requests. A hearing in this matter is scheduled for March 26, 2010.

Scope of the Application

2In his original complaint to the Ontario Human Rights Commission (the “Commission”) dated May 30, 2005, the applicant alleged that he was discriminated against because of disability because the respondents refused to permit him to record classes as a form of accommodation in September 2004. The respondents assert that the applicant was permitted to record lectures, but not personal discussions.

3In Interim Decision 2010 HRTO 210, dated January 28, 2010, I ruled that events arising out of the academic misconduct hearing in January 2007 and alleged failures to accommodate in 2007 did not form part of the basis of this Application.

The Request to Remove Respondents

4The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The personal respondent, William Gallant is the professor who allegedly advised the applicant that he could not record the student discussions and disclosed to other students that the applicant’s need for accommodation. Brent Angel is allegedly the person who recommended to Professor Gallant that a vote be taken, which resulted in the disclosure of the applicant’s need for accommodation. Clayton Smith allegedly told the applicant that he would face suspension from the class or from the University and unilaterally withdrew the applicant from the class against his will. Ross Paul allegedly told the applicant that he did not want him at the University and that he would do anything to have him removed from campus. In my view these types of allegations (if ultimately established) could potentially give rise to a finding that the respondents personally breached the applicant’s rights and could result in remedial orders being made against them personally. I find that it is not appropriate to remove them from the proceedings at this time.

Statement of Additional Facts

6The respondents note that the applicant has filed voluminous material, much of it relating to the academic misconduct hearings in 2007. They cannot discern the relevance of the documents submitted. To the extent that these documents are not relevant to the issues in the hearing, they will not be relied upon by the Tribunal.

7Further, the applicant is required to file a statement of additional facts if he intends to rely upon any facts beyond those set out in the complaint. In this case, where it is not self-evident how the disclosed material is relevant to the facts and issues in dispute, a statement of additional facts can assist the Tribunal and give notice to the respondents of the case they have to meet. The deadline for submitting the statement of additional facts has now passed, but in light of the Request for Order from the respondents, I find that it is appropriate to direct the applicant to file a statement of additional facts, setting out how the material submitted is relevant to the issues in the Application, within ten days of the date of this Interim Decision. The respondents shall be permitted to file a statement of additional facts in response, within ten days of receipt of the applicant’s statement of additional facts.

Outstanding Appeal

8In his response to the respondents’ Request for an Order, the applicant, who is now represented, advised that an appeal from the academic misconduct findings was heard on February 12, 2010 and a decision is outstanding. He asked that the proceedings be halted pending release of the decision. It is not clear to me whether the current proceedings should be deferred pending the release of the appeal decision on the academic misconduct. If the applicant intends to pursue this request for a deferral, he must file written submissions on the deferral issue within seven days of the date of this Interim Decision. The respondents shall have seven days to respond to the request for deferral, if any.

9The Tribunal will issue further directions as required.